MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  22 August 2000
	DOCKET NUMBER:  AR1999029899

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Correction of his military records to show he was appointed on 13 February 1997 as a Judge Advocate General’s Corps (JAGC) commissioned officer in the rank of captain instead of first lieutenant.

APPLICANT STATES:  He should have been appointed as a captain in accordance with pertinent regulations based on his 9 years of previous commissioned service.  He submits statements on his own behalf in support of his request.

EVIDENCE OF RECORD:  The applicant's military records show:

He was appointed as a second lieutenant, Infantry, from Reserve Officers Training Corps (ROTC), effective 13 July 1987.  He was promoted to first lieutenant effective 12 July 1990.  His promotion eligibility date (PED) for captain was 11 July 1994, based upon completion of 4 years time in the lower grade.

He was considered but not selected for promotion to captain by the 1994 and 1995 Reserve Components Selection Boards.  Notification memorandums were sent to him at a Magnolia, Arkansas address on 1 March 1994 and 27 January 1995 for first time considerations.  Discharge from the Reserve was required at the time in accordance with Army Regulation 135-155 and 135-175 based on two non-selections.  There is no record of discharge.

A corrected copy of the non-selection memorandum for his second non-selection, dated 27 January 1996, was forwarded to the applicant to a Texarkana, Texas address.  This memorandum was not based upon a third consideration by the RCSB.  It was intended to show a correction of the 27 January 1995 memorandum and that he received a second non-selection.  It also indicated that he must now be discharged unless he was eligible for transfer to the Retired Reserve and requested such.

On 2 August 1996 he applied for an appointment as a first lieutenant in the JAGC.  His application showed he received a law degree from Georgetown University, Washington, DC in 1990 and his permanent and current address as Dallas, Texas.  He did not list his Reserve service on the application as required; however he listed “ROTC” as his source of current commission and the rank of second lieutenant (sic).

He was not eligible for appointment in accordance with Army Regulation 135-100 based on his non-selections for promotion to captain.

His application was erroneously approved and he was appointed as a Reserve first lieutenant, JAGC, effective 13 February 1997, the date he accepted the appointment and signed his oath of office.

On 2 September 1999 his appointment was revoked due to his non-selection for permanent promotion to captain, in accordance with Army Regulation 135-175, requiring removal of an individual after a second non-selection.  He was formally notified of this action by memorandum, and that no formal discharge would be issued.

Army Regulation 135-175 prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army.  The regulation provides that individuals twice not selected for promotion to captain will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged within 90 days after the selection board submits its results.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers during this period.  It specifies that promotion to captain requires 4 years of time in the lower grade, and that individuals will receive mandatory promotion consideration prior to their PED's so that, if selected, they may be promoted on their future PED.  It also provides that individuals twice not selected for promotion to captain will be transferred to the Retired Reserve if they are eligible and request such transfer, or retained in the active Reserve when more than 18 but less than 20 qualifying years of service have been completed, or discharged.

Army Regulation 135-100 prescribes the policies and procedures for appointment of Reserve officers.  This regulation precludes reappointment of officers twice passed over for promotion in the Reserve.

On 16 June 2000 the Acting Chief, Military Personnel Law Branch, Administrative Law Division, Office of the JAG, expressed the opinion “[the applicant] was ineligible to receive an appointment in the USAR (absent action by proper authority) due to being twice non-selected for promotion to the grade of captain.” She further opined that “Because the appointment which serves as the basis for [the applicant’s] request is void, the issue of whether an error occurred in the calculation of [the applicant’s] entry grade credit and appropriate entry grade is moot.”  She stated that this action was coordinated with the Office of the General Counsel, Army.

The opinion was forwarded to the applicant for his acknowledgment on 10 July 2000.  His response was dated 8 August 2000 and received on 16 August 2000.

He contends he was not aware of the promotion considerations or non-selections in 1994 and 1995.  He had no idea he was promoted to first lieutenant in 1990.  He was consistently informed that he was a second lieutenant.  He notes the notifications were sent to an old address in Magnolia, Arkansas, and that he called his personnel manager every 6 months during 1990 until 1995 and admits he moved to his hometown of Texarkana, Texas during 1996.  He did not see the notifications until late 1999.  Another non-selection letter dated 27 January 1996 was a falsified document.  It was created later and backdated to make it appear as though he had been given a second non-selection notice in January 1996.  He contends that upon graduation from law school he was still on educational delay. He contends the advisory opinion in this case did not address or refute the central issue in his case, and merely stated that his request was moot.  He submits statements and other documentation in support of his contentions, including a defense of the allegation that he committed fraud by not listing his Reserve service when making application for a JAGC appointment in 1996.

The applicant now further requests correction of the revocation of his appointment in the JAGC, that the non-selections for captain be removed from his record, and that he be reinstated as a JAGC captain effective 13 February 1997.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  In view of the circumstances in this case, the applicant is not entitled to correction of his military records to show he was appointed on 13 February 1997 as a JAGC commissioned officer in the rank of captain instead of first lieutenant, correction of the revocation of his appointment in the JAGC, that the non-selections for captain be removed from his record, or that he be reinstated as a JAGC captain effective 13 February 1997.

2.  His contentions have been noted, however, he was not eligible or entitled to an appointment at the time.  His erroneous appointment was void and therefore, his request is moot as described by the JAG official in her advisory opinion.  The applicant is not eligible or entitled to the appointment and therefor, not entitled to further consideration for a higher grade.

3.  The Board also notes that based on his erroneous appointment in the JAGC on 1997, the appointment was properly revoked and he is not eligible or entitled to reinstatement to that status.  He has not shown otherwise.

4.  He was properly considered for promotion and he was not selected.  He was required to be removed from an active status at that time, but he erroneously was not discharged.  He was not eligible for further appointment in the Army based on the non-selections.  His erroneous appointment was later formally corrected however, by revoking the appointment with notification of such to the applicant.

5.  The Board does not accept the applicant’s contention regarding incorrect consideration for promotion to captain, or that he was not made aware of the non-selections until 1999.  The pertinent regulation, based on law, requires consideration for promotion to captain for those who serve 4 years time in the lower grade.  He knew, or should have known of his considerations for promotion and the results thereof.  The 1994 and 1995 notifications concerning the results of his promotion considerations were mailed to his then current address of record.  Non-receipt of notifications does not invalidate non-selections.  The notifications were made part of his official records, and absent receipt of the notifications, a review of his records during that period would have revealed this information to him.  He apparently, through his own volition, failed to notify Departmental officials of his change of addresses at the time, and he failed to review his records on a periodic basis.  He should not now blame these things on Departmental officials.  He also has not shown Departmental officials conspired against him or committed fraud in his case.

6.  The Commander, Army Reserve Personnel Command will be requested to review the applicant’s record for the purpose of issuing the required documents for his discharge in 1995, based on his non-selection for promotion to captain.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

NOTE:  The Commander, Army Reserve Personnel Command will be requested to review the applicant’s record for the purpose of issuing the required documents for his discharge in 1995, based on his non-selections for promotion to captain.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

___ew___  __mt____  __kl___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999029899	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000817	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.